Ford v. Plankinton Bank

• Decision Date: 10 April 1894
• Citation: 87 Wis. 363,58 N.W. 766
• Parties: FORD ET AL. v. PLANKINTON BANK ET AL.
• Court: Wisconsin Supreme Court

87 Wis. 363

58 N.W. 766

FORD ET AL.

v.PLANKINTON BANK ET AL.

Supreme Court of Wisconsin.

April 10, 1894.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by John S. Ford and others against the Lappen Furniture Company and others for sequestration. From part of the order appointing a receiver, the Plankinton Bank and William Plankinton, its assignee, appeal. Affirmed.

The action was commenced June 26, 1893, upon a complaint framed under section 3216 of the Revised Statutes, for the sequestration of the property, effects, and franchises of the defendant Lappen Furniture Company as an insolvent corporation. The complaint asks that the Lappen Furniture Company be declared insolvent; that all its property, effects, and franchises be sequestered, and a receiver be appointed; and that the several defendants, creditors of the said Lappen Furniture Company, be enjoined and restrained from further proceedings under their judgments and executions against the Lappen Furniture Company; and that the sheriff, Michael Dunn, be directed to pay over to the receiver all sums made by him, and in his hands, upon execution in favor of the said defendants, respectively, and that he be enjoined from paying it over to any other person. Upon motion founded upon the complaint the circuit court made an order whereby it declared the Lappen Furniture Company insolvent, and appointed a receiver of all its property, effects, and franchises, restrained the defendants named from further proceedings to enforce their claims against the insolvent, and directed the sheriff to pay over to the receiver all moneys made by him upon executions in favor of the defendants against the insolvent, and forbade him to pay to the defendants any moneys so made by him. The Plankinton Bank and William Plankinton, its assignee, alone, of the defendants, appealed, and only from so much of the order as directs the sheriff to pay over the moneys made by him on its execution, and restrains him from paying to this defendant, and this defendant from receiving, such moneys. The complaint states, in substance: That the plaintiffs are judgment creditors of the Lappen Furniture Company. That an execution on their judgment had been returned wholly unsatisfied. That the Lappen Furniture Company is a domestic corporation. That the Plankinton Bank is a Wisconsin corporation. The appellant William Plankinton was appointed assignee of the Plankinton Bank, June 1, 1893. That the defendant Michael Dunn is the sheriff of Milwaukee county. That the said Lappen Furniture Company was and is insolvent, to the knowledge of said Plankinton Bank. That the plaintiffs, being creditors of the said Lappen Furniture Company, obtained judgment against it, June 16, 1893, for $388.94, upon which judgment execution was issued to the sheriff of Milwaukee county, which execution was returned by said sheriff wholly unsatisfied, June 24, 1893; and that said judgment remains wholly unsatisfied. That said Lappen Furniture Company and its directors and officers colluded and conspired with the appellant Plankinton Bank and certain others of the defendants named in the complaint, not including the defendant Plankinton, for the purpose of securing “an unjust and inequitable preference over the said plaintiffs and the other creditors of the said Lappen Furniture Co.,” having knowledge at the time that the Lappen Furniture Company was insolvent. That, in furtherance of the conspiracy, the Plankinton Bank and other defendants named “have attempted to secure liens upon the property, to wit, the stock in trade and horses and wagons of the defendant corporation, the Lappen Furniture Company, by the levy thereon of executions upon judgments on confession against the Lappen Furniture Company, and have respectively attempted, by the enforcement of such executions, by sales thereunder, to appropriate and apply the entire stock in trade of the defendant the Lappen Furniture Company, and other chattels thereof, in and to the satisfaction of their several judgments, entered in manner and form as hereinafter stated, to the great injury of these plaintiffs and the other creditors of the said defendant the Lappen Furniture Company, in that, as plaintiffs allege the facts were.” Then follows the charge of the facts constituting the means by which the object of the conspiracy was effected as against the defendants Robert Hill, Gage E. Tarbell, and the Plankinton Bank, in substance as follows: That the appellant Plankinton Bank caused to be entered in the circuit court for the county of Milwaukee, on confession, a judgment in its favor against the Lappen Furniture Company, on the 16th day of May, 1893, for $10,104.48, damages and costs, and caused the judgment to be docketed on the same day, and on the same day caused execution to be issued in the usual form, with the usual indorsement thereon, and to be delivered on the same day to the sheriff of Milwaukee county, with instructions in the usual form to levy and make the execution, etc.; that the warrant of attorney for the confession of the judgment, and on which it is actually confessed, was executed and dated on the 13th day of May, 1893; and that the Plankinton Bank caused execution to be issued on the judgment, and delivered to the sheriff of Milwaukee county, May 16, 1893, and caused said sheriff to levy the same on the stock in trade and the horses and wagons of the defendant Lappen Furniture Company, said property having been levied upon by the sheriff under prior executions in favor of the defendant Robert Hill for $20,051.44, and in favor of defendant G. E. Tarbell for $9,369.15, and said sheriff having also seized said property, subsequent to the receipt and levy of the execution of the Plankinton Bank, under execution in favor of A. F. Tanner & Co. for $10,360.50, and under various writs of attachment, aggregating $5,246.37. It is also alleged that the sheriff sold all the property so seized by virtue of said executions, and realized $46,200 upon the sale thereof, which sum he held in his hands, and was about to turn over to the several execution creditors in the order of their priorities of levy. This was the state of...